Archive for category Comparative Law

A Quick Update on the Niqab Debate

Woman Wearing the Niqab, photo by AFP

Just a quick update regarding the Niqab debate in France: last week, the French Senate voted overwhelmingly and as expected the law banning the wearing of full-face veils that had already been voted by the lower house of the French Parliament, l’Assemblée Nationale, in July.

The law still has to face the scrutiny of the French Conseil Constitutionnel (France’s Constitutional “Court”), and eventually, challenges before the European Court of Human Rights. The outcome of each of these tests is uncertain, as there are arguably good arguments on both sides of the debate. Read the rest of this entry »

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Justice and the US; immigration and disability

It turns out that people face greater injustice in the United States, well at least in regards to immigration. This is because individuals with mental disabilities are more likely to face erroneous deportation under the US Immigration and Customs Enforcement (ICE). The reason for this is the judicial system. In the US, immigrants have no right to free legal representation at their hearings. Normally this is bad, but the effects are compounded when these immigrants have mental disabilities, and are just unable to defend themselves and put across their reasons for seeking asylum. Read the rest of this entry »

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Compétence sur la Compétence: A Comparison of the United States and the European Union, with Gloves

Flag of the European Union

There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.

I was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:

“for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.

A state  naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.

The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power – or what powers, including the capacity to make treaties – it holds.”

I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:

I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.

First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.

I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.

So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems. Read the rest of this entry »

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The Banning of the Niqab in France: Legal and Cultural Perspectives

A woman wearing the niqab (photo by Reuters, published on Le

Yesterday, the French lower-house of the Parliament, l’Assemblée Nationale, voted in favor of a bill banning the full-face Islamic veil, also known as the niqab and to a certain extent the burqa (even though no “burqa” has ever been reported to be seen in Europe – see pictures in this article), after months of debate in France and much criticism from abroad. The bill, which was approved by the National Assembly 335 to 1, will not yet be signed into law, as it is due to be voted in the upper house, the Senate, only in September. However, there is little risk that the Senate will not vote for it in turn.

For many people from outside of France, and in particular in what the French like to call “the Anglo-Saxon” world, the move to ban the niqab is an intolerable infringement on freedom of religion and individual rights, and should put the country that self-proclaimed itself the Nation of Human Rights (“La Patrie des Droits de l’Homme“) to shame. I should add that such concerns are also shared by some people within France, and many critics who consider that the French government should have better things to do than generate debates and promote laws on a practice that only concerns approximatively 1,900 women.

I think this requires a more thoughtful, and informed approach. Before I begin my presentation, I would like to say two things to set the foundations of this post: first of all, I will admit that, as a staunch supporter of laïcité (I’ll explain in a moment), I am favorable to the ban. I am telling you this out of honesty. However, my purpose here is neither to present a pro-ban vision of the recent vote, nor to convince you that I am right and you are wrong (assuming you are against the ban). What I want to do in this entry is present cultural and legal elements that will probably not convince you that the French National Assembly is right to ban the burqa, but that at least help you understand part of the reasons of why a ban was considered in the first place.

By doing so, I do not wish to deny the existence of racism, islamophobia or other forms of bigotry that can certainly be found in certain supporters of the ban. But I want to highlight other cultural issues, far more essential, and far more widespread, about the French and the reasons behind the bill that was just voted by the National Assembly.

Laïcité. You’re going to see this word a lot in this post, and I’m not translating it, because it is untranslatable. If you look it up in a dictionary, you will probably read “secularism”. That is true, but it’s more than that: laïcité in fact refers both to the 1905 law concerning the separation of the State and the Churches, and a secular way of life, which is in French culture a very important societal value.

From a purely legal perspective, laïcité only applies to the State. Article 1 of the 1958 Constitution of the Fifth Republic states that “France is a indivisible, laïque, democratic and social Republic. She ensures equality before the law of all citizens with no distinction of origin, race or religion. She respects every beliefs.” (translation is mine). According to eminent French legal scholar Patrick Weil, three principles results from laïcité: freedom of conscience, separation of State and Churches, and an equal respect of all faiths and beliefs (Patrick Weil, ‘Why the French Laïcité is Liberal’ (2008-2009) 30 Condozo L. Rev. 2699).

Two comments can be made from Patrick Weil’s three principles: first of all, each of them applies to the State, and not to individuals as such. Second of all, they – especially the first and third one – make the ban on the niqab look unconstitutional, as it violates freedom of conscience (assuming that those who wear it consider it a religious obligation) and appear to be discriminatory against a minority, which is contrary to the “equal respect of all faiths and beliefs” prescribed by the Constitution. I’ll get back to that later.

But an essential thing to understand about laïcité is that it is precisely more than just a legal norm: it is a societal value. The French, who have known in their history many religious conflicts, and who adhere to a vision of a “neutral” citizenship, have transformed laïcité from a norm that applies to their government to a way of life, a societal compromise to guarantee a form of equality among citizens. In the words of Jessica Fourneret, “laïcité is a concept regarding the separation of Church and State, yet it is also a state of mind that incorporates a long history of cultural ideas” (Jessica Fourniret, ‘France: Banning Legal Pluralism by Passing a Law’ (2005 – 2006) 29 Hastings Int’l & Comp. L. Rev. 233, p. 235). The ideal of this deeply secular society is that everyone keeps their religion (or lack thereof) to themselves, so that everyone can feel comfortable in the public space.

It is a radically different way of seeing things from the American and British conception of freedom of religion.

Ordre Public. It is important to understand the culture in order to understand the motives behind the law. However, the law is based on a hierarchy of norms, and as we have seen, a ban on the niqab cannot be founded on laïcité, as laïcité as a norm only applies to the State, not to the individual. But French lawmakers have another basis for the ban: Ordre Public, which literally translates as “Public Order”, and is very close to the American legal notion of “Compelling State Interest”: an interest so strong that it justifies limits to liberty.

Liberty is not absolute. The 1789 Declaration of the Rights of Man and the Citizen defines liberty in its articles 4 and 5:

Article 4 – Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the rights of each man has no limits except those that secure the enjoyment of these same rights to the other members of society. These limits can be determined only by law.

Article 5 – The law has only the rights to forbid such actions as are injurious to society. Nothing can be forbidden that is not interdicted by the law, and no one can be constrained to do that which it does not order.

What is injurious to society is limited by public order. How does that work in the niqab ban: security and human dignity. I’ll talk about human dignity some other day, as it is of indirect concern for the law (but it is very interesting). Security’s the issue at hand concerning this bill, but Ordre Public is more than that: not unlike compelling State interests, it is often used as a trojan horse to justify imposing societal values on recalcitrant minorities. This is what is at hand here, as public order is the foundation of the bill banning the niqab.

Going more specific: The Bill Banning the Niqab. On Tuesday, the National Assembly voted the bill, to much media coverage. It’s a very short text composed of 7 articles, article 1 being the one of most interest:

Article 1: Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.”

Translated, that gives “No one may, on public space, wear a garment destined to hide one’s face” (my translation)

Article 2 goes on to define public space as “public ways, spaces open to the public or affected to a public service”. You will note that the phrasing of the law is deliberately impersonal and vague, so as not to attract the ire of the Conseil Constitutionnel (France’s Constitutional Court), and perhaps more worryingly, the European Court of Human Rights.

Arguments behind this bill are several. On legal grounds, it is considered to be a matter of security: it is considered dangerous to tolerate individuals walking around in public spaces with absolutely no possibility of identifying them. Reports of criminals stealing from jewelery stores hiding behind a niqab have spawned in the French media, although the phenomenon remains largely marginal.

Issues also arise about human dignity, which I skipped over earlier. In France, since 1995 and a famous and controversial decision by the Conseil d’Etat (France’s highest administrative court – France has a dualist system, like most civil law system, which separates civil litigation and administrative litigation) Morsang-sur-Orge (I’ll have to write a post just on that one someday), it is considered possible that the State or the Judge imposes the notion of human dignity, sometimes against the will of the individual the State or the Judge seeks to protect. That notion, which generates very passionate debates among law students and lawyers in general, is also at the heart of the French ban.

More on cultural aspects. My post is starting to get a bit long, so I’m going to rush a bit the ending and eventually finish in the commentary if people are interested. Other cultural aspects to consider are the French model of integration, which really is not so much “integration” as it is “assimilation” of minorities into the culture. The model worked in the past well, as France, a land of many different groups and who has known several immigration waves has merged into one Nation. France is, in many ways much more a “melting pot” than America. America is more of a “salad bowl”: several communities, with their values and traditions, living side by side under the Flag – which is to take nothing out of the beauty of American society.

The wearing of the niqab is considered by the majority of the French as a refusal to integrate and meld into French society, which is why it gets such vehement reactions from the public and the politicians. It bothers the French that some of their fellow citizens would deliberately refuse to integrate in the society’s Republican values. This opens a whole debate about integration into France, and questions of racism, discrimination, and the overall growing sectorisation of our society. I do not want to get into that debate here and now, but it must be kept in mind that laïcité is an essential French value, and that those who refuse to adhere to it marginalize themselves from French society. Who’s to blame for that, or if the French should or should not tolerate such behavior, is a whole different debate.

A risky game, both legally and socially. The ban is a risk. Legally speaking, there is a chance that the French Constitutional Court or the European Court of Human Rights strike it down. Socially, there is a risk that an already stigmatized Muslim minority in France feels even more sidelined and unwelcome.

The problem at hand with the niqab ban is where do we, as societies, with our liberal values that we all hold dear, strike a balance between individual rights and societal values? Whether you like it or not, in most societies, you may not walk naked in the street (not that I’m comparing wearing a niqab to being naked). Liberty is defined by its limits. And it’s never easy fixing these limits.

Other nations are also considering a ban on the niqab, for their own reasons. For the French, it’s first and foremost about defending their values – the way we want to live together, in particular in a secular society where religion is kept private – when these values are being attacked like never before.

Does it infringe individual rights? Undeniably. Is it condonable? That’s up to you.

But for the majority of the French, is it worth the fight? Absolutely.

For another interesting post on France’s niqab ban and cultural aspects, see here.

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Asylum and Homosexuality

There was an interesting story in the Guardian today that restored my faith in the ability of the English judiciary. The case in question was an appeal to the now Supreme Court of the UK, and had to do with whether persecution because of one’s sexuality was a legitimate reason for getting asylum. In the original case, a man from Cameroon and another man from Iran, who were both gay, were refused asylum even though in Iran punishment for homosexual acts ranges from public flogging to execution, and in Cameroon jail sentences for homosexuality range from six months to five years. But according to the great Court of appeal it was an acceptable risk, because apparently these men could just pretend they were not in fact gay and live their lives as a lie.

Thank you for that pearl of wisdom.

However the Supreme Court has shown the progressive nature of the English culture and declared in its decision:

To compel a homosexual person to pretend that his sexuality does not exist or suppress the behavior by which to manifest itself is to deny his fundamental right to be who he is…Homosexuals are as much entitled to freedom of association with others who are of the same sexual orientation as people who are straight.

Well all I have to say is thank you Lord Hope, if this old middle/upper class male judge can recognize this fact maybe there is hope for the rest of the United Kingdom, and perhaps for the world to be equally as progressive.

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